Order 43 — Discovery and Inspection

(1) In any cause or matter, the plaintiff or defendant may deliver an interrogatory in writing for the examination of the opposite party.

(2) The interrogatory when delivered, shall have a note at the end of it, stating which of the interrogatory each person is required to answer and shall be delivered within 7 days of close of pleadings.

An interrogatory shall be as specified in Form 30 in Appendix 6 to these Rules with such modifications or variations as circumstances may require.

Where any party to a cause or matter is a limited or unlimited company, body corporate, firm, enterprise, friendly society, association or any other body or group of person, whether incorporated or not, empowered by the law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may deliver an interrogatory to any member or officer of such party.

Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant may be taken in the affidavit in answer.

An interrogatory shall be answered by affidavit to be filed within 7 days, or within such other time as the Judge may allow and shall be served a copy delivered to the party that delivered the interrogatory as well as the other parties or as the Court or Judge may direct.

An affidavit in answer to an interrogatory shall be as specified in Form 31 in Appendix 6 to these Rules with such modifications or variations as circumstances may require.

If any person interrogated omits to answer or answers insufficiently, the Judge shall on application issue an order requiring him to answer or to answer further as the case may be.

(1) A party may, in writing, request8any other party to any cause or matter, to make discovery on oath of the document that is or has been in his possession, custody, power or control, relating to any matter in question in the case.

(2) The request for discovery referred to in sub-rule (1) of this rule shall be served within 7 days of close of pleadings or within such period as the Court or Judge may direct and shall form part of the proceeding.

(3) The party on whom such a request is served shall answer on oath completely and truthfully within (7) days of the request or within such other time as the Judge may allow.

(4) An affidavit in answer to a request for discovery of a document shall be accompanied by any other document referred to.

(5) The affidavit to be made by any person in answer to a request for discovery of a document shall specify which, if any, of the listed documents he objects to producing, stating the grounds of his objection, and it shall be as specified in Form 32 in Appendix 6 of these Rules with such modifications or variations as circumstances may require.

(6) On the hearing of the application, the Court or Judge in chambers may either refuse or adjourn the hearing, if satisfied that the discovery is not necessary or make such order, either generally or limited to certain class of document, as may, in its or his discretion, be thought fit.

(7) Discovery shall not be ordered where and so far as the Court or Judge in chambers is of the opinion that it is not necessary either for disposing fairly of the action or for saving cost.

(1) Any process to be filed after the close of pleadings shall be accompanied by the document referred to in the process.

(2) Where a process filed is not accompanied by the document referred to in the process, a Judge may on application strike out the process.

(1) Where any document required to be attached to any process or produced under this or any other rule is a business book, a Judge may upon application order a copy of any entry therein to be furnished and verified in an affidavit and such affidavit shall be made by a person who keeps the book or under whose supervision the book is kept.

(2) Notwithstanding that a copy has been supplied a Judge may order inspection of the book from which the copy was made.

(3) The Judge may upon application whether or not an affidavit has been ordered or filed, make an order requiring any party to state by affidavit whether any document or any class of document is or has at any time been in his possession, custody, power or control, when he parted with the same and what has become of it.

An order for interrogatory, discovery or inspection made against any party if served on his legal practitioner shall be sufficient service to found an application for committal of a party for disobedience to the order.

A legal practitioner upon whom an order against any party for interrogatory, discovery or inspection is served under the last preceding rule, who neglects without reasonable excuse to give notice of it to his client, shall be liable to committal.

Any party may at the trial of a cause or matter, use in evidence any of the answers or any part of an answer of the opposite party to an interrogatory without putting in the others or the whole of such answer, provided that the Judge may look at the whole of the answer and order that any of it may be put in.

(1) Where in any action arising on a marine insurance policy, an application for discovery of a document is made by the insurer, the following provision shall apply:

(a) on hearing of the application, the Court or Judge in chambers may, subject to the provisions of sub-rule (2) of this rule, make any order in accordance with rule 8 of this order;

(b) where in any case the Court or Judge in chambers is satisfied, either on the original application or on a subsequent application, that it is necessary or expedient, having regard to the circumstances of the case, to make an order, for: the production of ship’s papers, the Court or Judge in chambers may make the order as specified in Form 33 in Appendix 6 to these Rules; or

(c) in making an order under this rule the Court or Judge in chambers may impose such terms and conditions as staying proceedings or otherwise as the Court or Judge in chambers in its or his discretion thinks just.

(2) The provisions of rule 8 of this order shall not apply to any application made under this rule.

The affidavit to be made by any person against whom an order for a document has been made under rule 5 of this order or under rule 14 (1) (a) or (b) of this order shall specify which, if any of the document mentioned he objects to produce, and it shall, except in the case of an order made under rule 14 (1) (b) of this order be as specified in-Form 33 in Appendix 6 to these Rules with such variations as circumstances may require.

(1) On the hearing of any application for discovery of a document the Court or Judge in chambers in lieu of ordering an affidavit of a document to be filed may order that the party from whom discovery is sought delivers to the opposite party a list of the documents which are or have been in his possession, custody or power, relating to the matter in question.

(2) The list shall, as nearly as may be, follow the form of the affidavit as specified in Civil Form 3 in Appendix 6 to these Rules.

(3) The ordering of the list shall not preclude the Court or Judge in chambers from afterwards ordering the party to make and file an affidavit of the document.

The Court or a Judge in chambers may at any time during the pendency of an action, order the production by any party, upon oath, of the document in his possession or power, relating to any matter in question in the action as the Court or Judge in chambers shall think right, and the Court may deal with the document, when produced, in such manner as appears just.

(1) A party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party in whose pleading or affidavit reference is made to any document to produce the document for the inspection of the party giving the notice, or of his legal practitioner, and to permit him or them to take copies of it.

(2) Any party not complying with the notice shall not afterwards be at liberty to put such document in evidence on his behalf in that action, unless he shall satisfy the Court or a Judge in chambers that the document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court or Judge in chambers deems sufficient for not complying with the notice, in which case the Court or Judge in chambers may allow the same to be put in evidence on such terms as to cost and otherwise as the Court or Judge in chambers may think fit.

Notice to any party to produce any document referred to in his pleading or affidavit shall be as specified in Form 34 in Appendix 6 to these Rules with such variations as circumstances may require.

(1) The party to whom notice is given under rule 19 of this order shall within (2) days from the receipt of the notice, if all the document therein referred to have been set forth by him in such affidavit as is mentioned in sub rule 16 of this order, or if any of the documents referred to in that notice have not been set forth by him in any such affidavit, then within (4) days from the receipt of such notice, deliver to the party giving the same a notice stating a time within (7) days from the delivery thereof at which the document, or such of them as he does not produce, may be inspected at the office of his legal practitioner, or in the case of banker’s book or other books of account, or books in constant use for the purpose of any trade or business, at their usual place of custody and stating which (if any) of the document he objects to produce, and on what ground.

(2) The notice shall be as specified in Form 34 in Appendix to these Rules with such variations as circumstances may require.

(1) Where the party served with notice under rule 19 of this order omits to notify a time for inspection, objects to give inspection, or offers inspection elsewhere than at the office of his legal practitioner, the Court or a Judge in chambers may, on the application of the party desiring it, make an order for inspection in such place and in such manner as the Court or Judge in chambers may think fit.

(2) The order shall not be made where and so far as the Court or Judge in chambers is of opinion that it is not necessary either for disposing fairly of the action or for saving cost.

(3) Any application to inspect a document, except such as is referred to in the pleading, particulars or affidavit of the party against whom the application is made, or disclosed in his affidavit of document, shall be founded upon an affidavit showing of what document inspection is sought, that the party applying is entitled to inspect them, and that it is in the possession or power of the other party.

(1) Where inspection of any business book is applied for; the Court or a Judge in chambers may, if it or he thinks fit, instead of ordering inspection of the original book, order a copy of any entry to be furnished and verified by the affidavit of some person who has examined the copy with the original entry, and the affidavit shall state whether or not there is in the original book any and what erasure, interlineation, or alteration.

(2) Notwithstanding that such copy has been supplied, the Court or Judge in chambers may order inspection of the book from which the copy was made.

(3) Where, on an application for an order for inspection, privilege is claimed for a document, it shall be lawful for the Court or a Judge in chambers to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

(4) The Court or a Judge in chambers may, on the application of any party to an action at any time, and whether an affidavit of the document shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any document or any class of documents, specified or indicated in the application, is, has or have at any time been, in his possession, custody, or power, when he parted with the same and what has become of it.

(5) Application for the order shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has or has at some time had in his possession, custody or power of the document, or the class of the document specified or indicated in the application and that it relates to a matter in question in the action.

Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part of it, the Court or a Judge in chambers may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first and reserve the question as to the discovery or inspection.

(1) Where any party fails to comply with the order to answer an interrogatory or for discovery or inspection of a document, he shall be liable to committal.

(2) The party shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court or a Judge in chambers for an order to that effect and an order may be made accordingly.

(1) Service of an order for interrogatory, discovery or inspection made against any party or legal practitioner shall be sufficient service to found an application for an attachment for disobedience to the order.

(2) The party against whom the application for attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

(1) A legal practitioner upon whom an order against any party for interrogatory, discovery or inspection is served under rule 25 of this order who neglects without reasonable excuse to give notice of it to his client, shall be liable to pay the cost of interrogatory without putting in the others or the whole of such answer.

(2) In such case the Judge may look at the whole of the answers, and if he is of the opinion that any of them is so connected with those put in that, those put in ought not to be used without them, he may direct them to be put in.

(1) Any party may at the trial of a cause, matter or issue use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer.

(2) In such case the Judge may look at the whole of the answers, and if he is of opinion that any of them is so connected with those put in, that those put in ought not to be used without them, he may direct them to be put in.

In any action against or by a sheriff in respect of any matter connected with the execution of his office, the Court or a Judge in Chambers may, on the application of any party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned.

This order shall apply to an infant plaintiff and defendant, and to the next friend and guardian ad litem.

Any order made under the provisions of this order including an order made on appeal may, on sufficient cause being shown, may be revoked or varied by a subsequent order or direction of the Court or a Judge in chambers made or given at or before trial.